The Art of DWI Defense

As the year 2009 comes to an end for me it is a time to reflect upon the past, and prepare for 2010. I have learned a lot this year, and grown as a DWI defense practitioner, and as a person. So as the year comes to a close... what have I learned? Or more true to form ... what have I been forced to remember?

1. You have to fight for what you want. Contesting a DWI comes with a price. Very little of true value, and worth comes easily. This price is not just money. It is time, it is effort, it is emotion, and it comes with making an investment in the outcome.

Whoever is first to the battle will be fresh for the fight. Sun Tzu

2. What happens outside of the Courtroom determines what happens inside the Courtroom. If a DWI trial is a day or two, the prep for that trial is weeks to months. Much like a game of football, level of practice and training determines the game's outcome. Few realize that those magic moments on game day are the result of thousands of hours of mental and physical work.

For me it is all those seminars, certifications in FSTs and Breath Testing, books, and DVDs. It is honing and focusing on one thing to the exclusion of all else.

The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand. Sun Tzu

3. DWI Policies are not set in stone. This year the Pope changed midnight mass to 10:00PM. In the 1960s the Catholic Church changed services from Latin to English. What is true and fixed one minute or moment in time will change tomorrow. Everything is dynamic, nothing is static.

If a District Attorney says, "we have never done it that way," I say, "well maybe now is the time to change." The government has policies, the Church has policies, and many corporations have policies. Rules, written and unwritten, observed and not observed are all subject to change. This year I have shown multiple people that just because you say (or your company states) this is the way it is, or this is the way it has to be, or this is the way we have done it for years, does not mean that is the way it will be, right now in this particular case or situation.

Water shapes its course according to the nature of the ground over which it flows; so in wartime there are no constant conditions. Sun Tzu

4. You have to move to progress. I get calls all the time. Sometimes from people not happy with their current lawyers. Often those lawyers did not file any motions, and did not move cases to suppression hearings in advance of trial. Even though we are in the defense game, you have to play offense as well. DWI cases are special in that waiting and hoping for what I call a Rambo victory by attrition is not a likely scenario. Remember in movie First Blood when Rambo was able to survive out in the wilderness. He was able to withstand the elements (the weather), able to forage and find food, and to create shelter out of garbage. He was able to outlast and outplay his pursuers. In survivor terms it was a battle for victory by attrition.

I have seen and heard of defense lawyers prolonging DWI cases for years in the hopes of getting a deal. Just one conference after another. This is more common with older lawyers. It is a civil strategy as well. The "Wear the Bastards Down" technique. Maybe that game plan will work with a drug case, or maybe that will work with a case involving civilian witnesses to a crime. I do not subscribe to that theory. Move, move hard, move fast, be proactive, and strike points. In other words, build a case defense, have a strategy, and attack the evidence. You cannot attack anything on your back. Make a Full frontal assault at the State's case, put them on the defense.

There has never been a protracted war from which a country has benefited.

One defends when his strength is inadequate, he attacks when it is abundant.

Thus, though we have heard of stupid haste in war, cleverness has never been seen associated with long delays. Sun Tzu

DWI Stories

December 22, and it has gotten cold in Ithaca, NY. The winter winds are starting to blow, and thermals are becoming a necessary part of my morning prep. Holiday parties are in full swing, and my phone has been ringing.

I listen to stories. In truth, everything is a story. Is there really an objective reality? Sometimes the truth is stranger than fiction. If someone believes that is what happened, is it a lie? There are the stories that my clients tell me, and then there are the stories that the police write in their reports. Often my clients tell me, "that never happened! or I don't remember saying that!"

I give my client's a long questionnaire to fill out, and also ask them to supply me with a narrative of the day of their arrest. That will begin to give me the best (most complete) view (story) of the DWI. Combining that story with the police reports, and records puts me in a good position to gauge the potential defenses, strategies, and issues within the case. BUT what happens if my clients DISTORT their memory, and then I am left with a faulty story of the event.

I believe as a DWI defense lawyer that One of the most important stories is my client's way of "seeing" this event.

I am not a psychologist but I love understanding how people think. Psychologists use the term

Cognitive Distortions to describe a person who takes an event, and sees it in unhealthy ways.

1. Absolute thinking (the all or nothing pattern): Seeing your DWI as black or white. Using words like always, never, and every paint you into a corner mentally. DWI cases, and their defenses have degrees of gray, rarely are they in clear cut black or white categories. You are not a total failure because of this DWI.

2. Overgeneralizing: This DWI is not a never ending pattern of bad news or your life's direction.

3. Using Mental Filters in the negative: You pick out everything you did that was wrong, improper, and focus on that to the exclusion of everything else. Are my clients blocking out the truth (the good things they did) at some unconscious level? Are they blocking out their memory of normal, sober, and appropriate behavior patterns?

4. Negate the Positive: You downplay your positive experiences. You put down your ability to follow directions accurately, to follow the officer's directions under pressure, and to walk on a straight imaginary line in the dark at 2:00AM.

5. You Jump to Conclusions and Interpret Negatively: Just because you are not coordinated doesn't mean you were drunk, do you have two left feet?, just because you were speeding doesn't mean you were driving drunk, drunk is a conclusion, intoxicated is a conclusion, impaired is a conclusion, you can look for and see things any way you choose to convincingly support a conclusion. My tie may be red I(a fact), whether it matches my pants or is ugly is a conclusion. Give me the facts, not your conclusions about the facts.

6. Magnifying or Minimizing: Are you exaggerating or minimizing the importance of any part of this event or the event itself? Are you inappropriately making things smaller or larger than they are or need to be? Is this goof up the end of your life? your marriage? your job?

7. Emotionalizing: Are you emotionalizing (feeling it to be) the DWI? I feel it is..... so it is. Things and events are devoid of emotions and feelings, if you choose to attach negative emotions to this event it will reflect back to you as "truth" when in fact it is only a version of the events.

8. Shoulda, woulda, coulda, I must, I have to: These are the words of guilt. This behavior pattern will not help you or your case. Guilt is lopsided, it means imagining more negatives than positives in your past.

9. Mislabeling the event: Describing the DWI by putting a negative label on yourself, as in " I am a loser" or "I am an idiot"

10. Personalizing the DWI: This means "I am a horrible person, I am irresponsible" You are not your DWI case. You are not crime, or a criminal charge.

All these "Distortions" will hinder your getting past this event, and your DWI defense. They cloud your mind, your judgment, and your remembering the event clearly. To be the most help to your attorney you need a clear head.

What is DWI "Per Se"?

One of the more challenging things about practicing DWI law is communicating the legal statutes in a way that is clear and understandable to my clients. All 50 states have at least two main types of DWI/DUI offenses. One is called a common law DWI, this is what most people understand or interpret as the "driving while drunk" or "driving while impaired" or "driving under the influence." It has many legal definitions, but in NYS it is mental and physical incapacity to operate (drive) a vehicle as a reasonably prudent (safe, responsible) person.

The other NYS statute is our DWI "per se." PER SE: latin for "by, through, in and of itself, intrinsically, inherently, requiring no external evidence."

If you get one thing from this blog this is it:

You DO NOT have to show the signs or symptoms of intoxication or drunkenness or impairment to be found guilty of this offense.

Merely the fact that a "good" (accurate, reliable, properly administered, calibrated) breath test indicated a BAC (blood alcohol concentration) of .08 or more. Some people like to argue but "I wasn't drunk." It does not matter. But I drove perfectly, it does not matter. But I understood the police officer and did all the tests right, it does not matter. If the state (the government/the prosecutor) can bring in their BTO (breath test operator) and make out (prove):

1. he or she was licensed

2. the machine was properly working

3. the test was properly administered

4. the test was performed within two hours of arrest

then ... the jury may (or may not) find that you are guilty of DWI "per se."

Now a DWI defense attorney can argue the problems with taking indirect measurements of blood through the taking of breath. He can argue that everyone is different even though these machines are calculated and calibrated and set up to test and assess "average" people. He can argue that you, the individual on this given occasion had specific medical issues. He can argue that the test was not properly administered, ie. No 20 minute "observation" period.

I have previously discussed other defenses to breath test results that do not match "sober" behavior patterns. In addition, everything the state proves must be proven to the BRD standard (beyond a reasonable doubt).

I could go on and on, suffice to say, the "science" behind breath testing for alcohol leaves a lot to be desired. Prosecutors and many Judges love to rely upon breath test numbers as godspell. After going through the certification program, and studying these machines I am more than a skeptic concerning their accuracy and reliability. I do not trust breath tests!

Mandatory Ignition Interlock Devices (IID) and NY DWI

Well Friday, December 18, 2009 was a historic day. It was the first day that the "new" New York DWI laws took effect. It was thirty days from Governor Paterson's signing, and Ithaca City Court Judge Kerrigan mandated the first case of the day, my DWI case, with a sentence of a conditional discharge (one year - no new trouble ie. crimes), and a Ignition Interlock Device to be imposed for six months. This of course was in addition to the fines, NYS surcharge, mandated DDP (drinking driver program), and a one time VIP (Victim Impact Panel) for March 31, 2010.

All DWI convictions, whether for VTL DWI "per se" with a BAC .08 or higher, 1192 (2), or

VTL Aggravated DWI with a BAC .18 or higher, 1192 (2) (a), or VTL DWI "common law" 1192 (3) with no BAC will now have the mandatory imposition of a six month IID on their vehicles.

The applicable section of the new act is below:

(ii) In addition to the imposition of any fine or period of imprisonment set forth in this paragraph, the court shall also sentence such person convicted of a violation of subdivision two, two-a or three of section eleven hundred ninety-two of this article to a period of probation or conditional discharge, as a condition of which it shall order such person to install and maintain, in accordance with the provisions of section eleven hundred ninety-eight of this article, an ignition interlock device in any motor vehicle owned or operated by such person during the term of such probation or conditional discharge imposed for such violation of section eleven hundred ninety-two of this article and in no event for less than six months. Provided, however, the court may not authorize the operation of a motor vehicle by any person whose license or privilege to operate a motor vehicle has been revoked pursuant to the provisions of this section.

Information on Ignition Interlock Devices and/or installation / service centers, contact:

Ron Bergstrom

Community Corrections Rep I

NYS DPCA

80 Wolf Road, Suite 501

Albany, NY 12205

518 485-9941 or: Ron.bergstrom@dpca.state.ny.us

Company Websites and more information:

INTERCEPTOR IGNITION INTERLOCK INC.

(www.interceptorusa.com)

SENS-O-LOCK DETERMINATOR

(www.sens-o-lock.com)

INTOXALOCK BY CST, Inc. (call 877 777-5020)

(www.intoxalock.com)

DRAEGER SAFETY, INC.

(www.draeger-breathalyzer.com)

NATIONAL INTERLOCK SERVICE

Telephone For All: 1 800 871-5462 or (www.nationalinterlock.com)

SMART START

(www.smartstartinc.com)

There are a lot of problems with these devices in general. I will compare and discuss the various devices in future blogs as to reliability and ease of use.

2012 Update to IID BASICS or the Most Common FAQs

1. Is an IID a Must or a Should have?

The IID is not discretionary for NYS DWIs, it is Mandatory since August, 2010.

The Judges and the District Attorneys have no leeway or power here, if is a DWI (VTL 1192 (2), VTL 1192 (3), or ADWI (VTL 1192 (a) (a) then a device MUST be installed within 10 days of sentencing.

Bottom Line: There is NO plea bargaining concerning IIDs.

2. What if I live in another state?

It does not matter if you live in NYS or someplace else, you will have to get it installed. So if you live in PA, TX, or CA expect to hunt down an IID provider location, and then they will report back to the county monitor in NYS every 30 days. many of these IID providers have National Support. If you plan on moving (relocating) then plan on continuing monitoring as well. As long as the County Monitor is kept informed and updated it should not be a problem. The device must be downloaded at a physical location every 30 days.

Download times run 5 to 15 minutes. Some places can come out to your car with a handheld downloader.

I have not had the issue with "Out of the Country" (Foreign) License Holders unless they desired NYS privileges. My Canadian Clients end up with far worse consequences from their own country.

3. Could you just say (tell the Court) that you don't have (own) a car?

You could but it is still on your NYS DMV record, a hold will be in place by the county monitor (will be seen in any other state). With this new thing called the internet, and a National Registry of licenses:

http://en.wikipedia.org/wiki/National_Driver_Register

When you apply for a license or renew an existing license then they will run your record. If it shows up with a serious driving offense, like a DWI or DUI then the system is alerted. Your license (or driving privilege) in NYS will remain revoked UNTIL it is lifted by the County IID Monitor. If you choose NOT to comply with the NYS Court Ordered IID then other states will not give you (or renew) driving privileges either.

All Motor Vehicle Associations must check you under Federal Law 23 CFR 1327.5(b)(1). 

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div8&view=text&node=23:1.0.3.17.2.0.1.5&idno=23

4. What if You really don't Own a car?

It still remains on your NYS record, and the National Database as a revoked privilege/license. I have had clients have to borrow or buy cars to fulfill the Court obligation. They had a rental car, and were merely visiting NYS when they received a DWI. A Court Order is a Mandatory Obligation. It cannot be argued that you are in an unreasonable situation. In fact, a North Carolina client had to figure a way to get their car to a state with IID providers because North Carolina has none.  When I spoke to NYS DMV they just shrugged it off, not a perfect law by any stretch of the imagination. It has a great many issues with practical application in a day and age where people frequently travel, relocate, and are city dwellers.

5. Can it be installed prior to the Court's sentencing?

You "may" be able to get it installed BUT most places (providers) will NOT install it without the Court documents/final Court Order.

6. Are there differences between the units (IIDs)?

For sentences of a CD (Conditional Discharge) which is lieu of Probation and/or Jail, the Tompkins County Monitor has only been requiring a Class I (lowest level device). This one is the least expensive, and has NO camera. Higher level and naturally more costly devices have cameras to take your picture when blowing.

In Tompkins County, Probation sentences require the Class 3 device (with Camera) for the three year probation term.

7. Where Can I get one (an IID) in Tompkins County?

 In Tompkins County we have three main providers:

1. Route 366 and Route 13 next to AAA Motor Club, Autowerks (carries Smartstart IID vendor)

2. Highway Hi Fi, on Route 13 across from Papa John's Pizza Plaza.

3. Hunt's Auto service, Intoxalock Vendor, a little across from Tompkins Trust off Route 13.

Smart start was offering a free install, as an incentive, But I prefer the Intoxalock to avoid problems with the device's operation.

8. How do I get One installed?

You just call and say you need an IID, they will schedule you. Bring the final Court Order. Takes about an hour or less to install. Camera IIDs take longer because of the camera placement.

9. What else Must I do when installing the IID?

You must contact the County Monitor within 3 days of sentencing. It may be a different person if you are on a term of Probation versus receiving a CD (Conditional Discharge). Generally the minimum term for the device is 6 months, but some Judges place it on for 12 months or longer, even for a CD. All misdemeanor Probation terms are for three years.

The contact name and number for the Tompkins county IID monitor:

Michelle Barber:             Phone: 607-274-5461

Fax:  607-274-5429

Email: mbarber@tompkins-co.org

10. What Should I be aware of when installing the IID?

My Warnings: 

                           1. If the car that is getting the install has issues (mechanical and/or electrical) with the following it "can" affect the function of the device:

low battery

alternator voltage

defective horn

untimed engine

frequent stalling

Check the car out throughly before it gets this device installed. People that do not (screen and fix) or place it upon a junker are not usually happy because the device will malfunction. This can then provide the monitor with false readings of intoxication.

                           2. Do not drink the night before you drive, or else the device may be triggered from alcohol still in your system (body). 

WARNING: A BAC of .05 is an automatic Serious Violation/Failure that will require a Court Appearance.

                           3. Do not use cologne, perfume, mouth wash, toothpaste, mints while in the car or with anything that could trigger the device

11. How is the device set up and used?

The unit is calibrated for up to .25 BAC before it triggers but that said I would not rely upon that as a number because your body naturally produces some alcohol.

-the unit will demand a start up test

-then an initial rolling test (within a random interval ranging from 5 - 15 minutes) 

-subsequent rolling tests, not to exceed 30 minutes

They will (the installer) give you more information, these are merely some highlights. 

12. What if I am in found in Violation?

A violation of a CD will result in your being re-sentenced by the Court. The matter can be re-opened, you can receive jail time, you can receive three years of probation, you can receive a longer term for the IID to be in place.

Law Offices of Lawrence Newman

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

Dividing and Conquering the DWI

I am a fan of military movies. When I was young I loved to watch John Wayne, Clint Eastwood, and Charles Bronson. They were in my mind men's men. They were walking, talking confident leaders. In my memory, forever type cast as strong, wise, and tough conquerers. They fought for justice, freedom, and the pursuit of happiness.

When I think of my own career arcs, I have always fought or placed myself up against the establishment. When I was a Chiropractor, it was giving my patients the choice of using holistic and natural treatments rather than blindly following one size fits all modern-scientific medical dogma. At other times it was arguing with an insurance company who refused to pay for a procedure or denied benefits. As a lawyer practicing civil law, it was fighting hospitals, medical doctors, and their insurance companies.

Today, practicing DWI defense law, it is the New York State government, law enforcement, and their lawyers (the prosecutors). I am the check to the system. Often I work to set an imbalance. In other words, to create a more level playing field.

One basic premise behind DWI defense is that a case can be won if it is carefully and completely broken down into little pieces. The military theory behind it is called, "Defeat in Detail." You can defeat an enemy more easily by dividing their forces. As Lincoln said, "United we stand, divided we fall." Sun Tzu, said in classic military text, The Art of War, "Fracture the whole."

Any case becomes a story. Every story has chapters. Each chapter has a goal and a purpose. The story is usually of a person at the center of a police investigation.

While they (the government lawyers) are focusing on patterns and signs that focus on drunkenness. I break down the story into the good driving, normal walking, normal talking, normal thinking, normal responding, normal answering, and normal behavior into little bites of tailored information. Each chapter of my story highlights function, and normality. My story focuses on the missing pieces. Their stories embody red, bloodshot, watery eyes, slurred speech, and the strong odor of alcohol. Painting a picture of the fall down drunk. I am looking for all the other reasons (the reasonable doubt) for those same observations.

What is observed are always surface signs. Eyes can look watery at 1:30AM for many reasons, none having to do with the consumption of alcohol. The majority of people are not at their best in the middle of night, and the early morning hours.

So many questions need to be asked. How long have they been studying? How many hours sleep have you had the night before? What is the state of their health? What effect do red and blue flashing lights play in your performance? Or a huge flashlight thrust in your face? Were you nervous, upset, and scared? The term "performance anxiety" ring a bell. How well would anyone do at anything if they forced, under the gun so to speak to perform?

It's all how you look at it. It's the focus. It's the breakdown. It's the details. Make a list right now (while it is still fresh) of everything you did that was good, that was right, that was normal

on the night of your arrest. You will be surprised at how much of what you remember was normal.

Lessening the Consequences of Your DWI: How to Deal with Your Loss of License

The first order of business after any DWI arrest is what's going to happen to your driver's license?

In New York State, we have a "suspension (of license privilege) pending prosecution" which will usually occur at arraignment (initial appearance). Fortunately, New York does have a hardship privilege, and also offers conditional licenses for specific purposes. How those privileges are obtained, how wide or narrow they are, and how they will fit your life's transportation needs is dependent upon many factors.

If someone hires a lawyer early (way before arraignment) then the total license issues (in state, out of state, conditional, hardship) can be evaluated and prepared for.

Are you a student? If you are a college student, what state is your license from? Are you doing late night or weekend research? If you have a job, what "type" of work do you do? Are you in transition between states, jobs, or homes? Are you divorced or separated? Do you need to pick up or transport minor children? Do you have child care responsibilities? Are you self -employed? Does your job require meeting with clients? Do you live in a rural location? Are you planning on moving to another state in the near future? Do you or a family member have medical needs? Your response to every one of these questions is important. What type of proof is the judge going to require to obtain a hardship privilege?

My first goal is to keep someone employed (able to get to and from work) and functional.

My second goal is to lessen license penalties (time of full suspension or revocation).

My third goal is to prepare for potential future issues (re-location, re-licensure).

There are ways to save time and money dependent upon your unique situation.

The first change every driver must make is going from a full privilege to drive to a conditional (restricted) privilege to drive. This may be for a period of weeks to months depending upon the facts of your case. If your case can be easily resolved (negotiated) then license issues can be further minimized.

Generally, the first 30 days (after initial appearance) will be the hardest because of two things:

1. the hardship privilege is the most restrictive type of conditional license (very narrow language of "to and from" work, "to and from" school, and "to and from" medical care)

2. SPECIFIC PROOF MUST be provided to the Court (the Judge will usually only allow what can be proven to where there is "no alternative reasonable means of transportation").

The next time period (after the first 30 days of arraignment) you can go to any NYS DMV office, and apply for the Conditional License. This requires NO PROOF. You fill out the application and your work privileges go from the "to and from" to "in the Course of employment," which is a much wider license.

Of course, the absolute best thing to do is to hire a knowledgeable DWI attorney early and to discuss all the specifics of your situation. This will give you the best chance to save time, money, and aggravation.

New York Passes New Tougher DWI Laws

Yesterday I was first up in Ithaca City Court (first come first served), with four DWI cases in various stages of disposition. Judge Rossiter began the morning by announcing to a full Courtroom (240 cases on her docket) about the new New York DWI legislation that was a coming.

On November 18, 2009, Governor Paterson signed into law, Governor's Program Bill Number 204, The Child Passenger Protection Act, also known as Leandra's Law, it passed by the wide margin of 58-0.

New York State now joins 35 other states that make it a class E felony for first time DWI offenders driving with children as passengers. Class E Felonies carry State prison terms of 1 to 4 years, and 5 years of probation.

This new law also makes Ignition Interlock Devices Mandatory for first time DWI offenders. This is something the Court must impose for a period of at least 6 months. Illinois just put this into their law in 2009, and many other states are following suit.

Specifically under the new law:

1. First time DWI offenders (the per se violation of a BAC .08 or higher and/or common law DWI) or Impaired by drugs (DWAI drugs) driving with a child (15 years or under) may be charged with a Class E Felony. In the past, DWIs were only charged as Class E felonies after a second DWI was committed within a 10 year time period.

2. Mandatory Driver License Suspension (pending prosecution) for people so charged. This is no different than the law in it's current form.

3. Courts MUST order an ignition interlock device on all those convicted of DWI. There is a minimum 6 month time period for Installation and maintenance of the device on any vehicle owned and operated by those convicted of DWI.

4. The Probation Department within each respective county will monitor, issue regulations, and oversee these Ignition Interlock Devices, and their usage. Reading between the lines that means Probation Supervision is a likely possibility ( 3 years for a misdemeanor DWI, and 5 years for a felony DWI) for those convicted as well.

5. Drivers who cause serious physical injury (the threshold for serious injury is not very high) to children 16 or younger will be charged with a Class C Felony, punishable by up to 15 years in State Prison.

6. Drivers who cause the death of child may be charged with a Class B Felony, punishable by up to 25 years in State Prison.

7. Drivers (who are also parent, guardian, or legally responsible for a child) charged with any DWI or DWAI drugs while "that" child is a passenger will also be reported to the Statewide Central Register of Child Abuse and Maltreatment. Child endangerment charges are another likely scenario as well as being held as an unfit parent or legal guardian.

The good news, this year I have not had any DWI cases where my clients had children 16 years or younger as passengers in their cars. Although I did refer a DWI case with a NY driver traveling through another state who did have his children asleep in the back seat of his car. If that same case played out here, with this new legislation in place, it would be a potential nightmare on so many levels.

In that situation, the Office of Children and Family Services would be involved, and those parents would be facing criminal court and family court, and an open Pandora's box of problems. Charges of Child maltreatment, Child neglect, and Child abuse may add to all the other issues facing first time DWI offenders.

Lawrence Newman, D.C., Esq.

http://www.ithacadwi.com

What does Your DWI Lawyer Believe?

I have just turned the magic age of 48. Getting a bit more grey, having a few more excuse me "sirs" thrown my way pauses me to think, to reflect, and to question.

I feel extremely fortunate for my time here, my practice, and my opportunities. I have had 23 years of practicing both as a Chiropractic Physician, and as an Attorney at Law. Along the way I have had the pleasure and pain of helping thousands of people get through some of the worst times in their lives. I am at heart a caretaker. I am good at helping people heal. Whether with a word or a touch, it is my gift and ability.

I love to learn. What I have returned to again and again is that a person's beliefs will truly control and direct their destiny. At it's core, belief systems can be a series of convictions. Things that people are convinced about. They will fight to maintain them, and to honor their truth.

How many things do we believe in that are "true"? Only later to discover are false. They are propaganda, they are the ideas of others that we have bought into.

I caution those that pick counselors, choose leaders, and hire advisors to first find out what those people BELIEVE.

What does your doctor believe? Does he believe in the miracle of life and love? Does he believe that everything he was taught was fatal, actually is? Does he believe that the mind can affect the body? Does he believe that natural cures and remedies could work? Does he believe that everyone fits in the same box and should receive the same medicine? Does he buy into the value of rest, fresh air, and exercise? My father's doctors all smoked, and were overweight. They cautioned me about doing too much exercise. My father died of a third heart attack at the young age of 51. All his "trusted" doctors, his health advisors died early just like he did.

Now think about this for a moment, this is your doctor, and he is going to advise you, he is going to recommend treatment, he may even render a surgical opinion, how important is his belief system to the ultimate outcome of your care? It is everything! How he feels about drugs, food, surgery, and all else will color his advice to you.

Now take that understanding and perspective to the attorney that is going to represent you.

What does your DWI Defense attorney believe? Does he believe that the breath test is a very accurate, reliable, scientific, and valid measure of blood alcohol concentration? Does he believe that field sobriety tests are fair? Does he believe that the police officer's opinion, and his report are the truth?

I have met many attorneys whose belief systems are defeatist. They are sunk before they even begin. Where can you possibly go if you BUY into the prosecutor's machine result? What can you possibly argue with any heart or passion if you believe that your client is guilty as charged?

The reason why the best (I use that term with caution) DWI defense attorneys go to seminars (on the breath machines and field sobriety tests) is not only to gather knowledge BUT more importantly to topple belief systems. To challenge the reliability, accuracy, and validity of "objective" evidence. To change their minds about possible versus probable. To discover and uncover the natural and persistent doubt that goes with a great defense of the government's proof.

In my opinion the best DWI defense lawyers are SKEPTICS. They want to be shown, they are doubters, they are devil's advocates, they are in a word "difficult" and hard to convince.

What your lawyer and your doctor believe is very important to you and your future.

This is what I believe:

1. Machines are not perfect. They make mistakes. Even when they work perfectly they are subject to error. Often the people that use them use them incorrectly. Breath testing is convenient and cheap, it is not scientific, accurate, or reliable in it's current form.

2. All DWI cases must be looked at in detail, and the evidence must be gathered so that the situation can be looked at in the TOTALITY. How I feel about a case or advise a client will turn upon a full, fair, and realistic evaluation of everything.

3. Opinions are just that. A viewpoint, and a perspective, that have a bias, and that are highly subjective.

4. Lawyers need to understand what is important to their clients. My job is to guide, advise, and represent "their" interests being mindful of "their" values.

5. What people want, and what they can have may be world's apart. While lawyers can predict outcomes, we certainly cannot guarantee them. Many things are outside of our control. Judges, juries, and facts beyond change (accidents, prior convictions, chronologies, etc.) can impact final outcomes. When it comes to legal matters, You may want the cheerfulness of an optimist and hate the opinion of the pessimist, but what you really want is the advice of a realist.

Always ask your doctors, and your lawyers what they "believe" before you hire them to help you.

Keeping a DWI Defense Perspective

Ah little Ithaca, NY with it's rural two lane roads. Some days I spend hours in my car. It allows me lots of time to think. Driving from a Court in Tompkins county to another Court in Seneca County, I got DWI cases on the brain.

My curse or blessing is that I am always thinking. My mind is processing and sometimes my hard drive is so engaged I lose track of place and/or time. One thing that time allows is the ability to see things anew. I remember my college days of first drafts, and long hours in a chair. But first drafts like first anythings are merely openings. True "ah hah" moments occur long after those initial efforts. Putting papers away, taking a break, catching a nap, or going for a drive create a gap between not only "the work" and "your life" but your perspective as well.

When I sit down with my clients and review their police reports they initially go through all the stages of loss (anger, denial, acceptance, bargaining). The truth is it is merely an opinion of an event. Once I explain what I am looking for, reading in between the lines, and seeking the complete picture they begin to lighten up. In fact, their posture often changes immediately from a slump to an upright position.

What was NOT written is as important if not more important as what WAS written. Nobody (police officer) is going to write a perfect report. Often there are flaws, inconsistencies, and errors. People love to use adjectives, but often adjectives are conclusions not observations.

For instance, the BIG THREE:

1. ODOR of alcohol

2. Slurring of speech

3. Bloodshot/watery eyes

1. The "strong" odor of alcohol means what? Does it mean you had alot to drink? Can anyone tell the amount of alcohol based upon an odor? That is like saying I can tell how clean you are (your level of hygiene) by the smell of your cologne, hair product, or perfume. The odor of alcohol coming from your breath means one thing, and one thing only, you consumed alcohol, period.

If you told the officer that you drank that evening what has it (odor) added to his investigation? Nothing. It does not indicate DWI. It indicates Consumption of an alcoholic beverage. Nada mas!

2. Has this officer ever heard you speak before? Does he know how you normally speak at 2:00AM? Does he know how you speak when you are tired or are suffering from sleep deprivation? Is there anything that you said to him that he did not understand? Did he ask you to repeat any words or responses? Were you able to provide him with intelligible and articulate responses to all his questions? So what is slurring? Is it the elongation of syllables? I am not a speech pathologist, and neither is this officer. We are all different. We all speak different, walk different, and talk different. Our muscles (both large and small) tense and lock up when under stress (a traffic stop/police encounter). It is common knowledge that people that are anxious and nervous do not speak as fluently. Public speaking is the number one fear. Situational stress and physiological adaption are real and NORMAL.

3. Everyone's eyes have a certain degree of moistness. Are your eyes red because of a cold, allergies, tiredness, exposure to the cold, wind, or do you suffer from "study syndrome"?

All kidding aside, I just made up the diagnosis of study syndrome, but sitting in a library or room writing papers for hours can make your eyes look pretty bad. Having a fight with your boyfriend, parents, or roomies can also make your eyes red and mad. So what does the observation of bloodshot/watery/red eyes tell us? Is everyone with watery eyes drunk? Are your eyes "very" watery? Compared to what? Compared to who? Dos it mean you are DWI? Of course not, it means you are NORMAL.

So there you have the BIG THREE, in any trial those are the first alleged observations that need to be cross examined thoroughly. If not dealt with, Jurors expect (and envision) someone from the show cops. You know those fall down, barely standing, drunk out of their mind, yelling lunatics. Those people are off the charts when it comes to BAC (blood alcohol concentrations).

Sometimes it is not as bad as you think it is or sounds!

The Sesame Street DWI Defense

Well it is the 40th Anniversary of Sesame Street. How do I know this? Google is a great teacher. My Google home page often displays something unique and different. Many days my curiosity leads me to click the current icon, and learn something new.

Sesame Street has been on TV since I can remember. It has helped to raise and educate millions of children. It has been said that Joe Camel is one of the most recognized symbols in America after Mickey Mouse. I would argue that Big Bird, Elmo, Ernie, and Cookie Monster are all close rivals.

I learned a Sesame Street DWI defense from a fellow DWI lawyer named Bruce Kapsack who practices in California. Bruce has a great book detailing many defenses he has used to win drunk driving cases. It is called, "Innovative DUI Trial Tools." http://www.kandblaw.com/

One of these defenses Bruce talks about in his book is called the "Disconnect Theory" or as Sesame Street sings, "One of these things is not like the other, one of these things just doesn't belong."

One of These Things (Is Not Like The Others)

Words and Music by Joe Raposo and Jon Stone
One of these things is not like the others,
One of these things just doesn't belong,
Can you tell which thing is not like the others
By the time I finish my song?

Did you guess which thing was not like the others?
Did you guess which thing just doesn't belong?
If you guessed this one is not like the others,
Then you're absolutely...right!

The defense is: If we have a breath test result (high BAC of say >.12) that doesn't match up with the client's behavior, driving, stop, mental function, walking, and talking then this BAC NUMBER is a mismatch (it doesn't belong). Coupled with the facts of the case, ie. the client never used the bathroom after the time of the arrest. How is that possible if he is alleged to have had so much to drink?

Here we have the making of reasonable doubt that the machine's BAC number is NOT accurate, reliable, and valid. All proof in the prosecution's theory must add up. If the totality of the situation just doesn't add up...

Inaccurate machine results lead to wrongful convictions!

K.I.S.S. My DWI

I'm not from Ithaca, NY even though I love the area. I always say I am in Ithaca by Choice Not Chance. I am thankful daily for my educational opportunities both as a Chiropractor, and as a lawyer. When I hear students complain about the high costs of college I am quick to point out the higher costs of ignorance. But educations much like people come in different forms. I grew up with few privileges (my kids hate my Abe Lincoln speech) but growing up on the streets of Brooklyn I learned a great many things they don't talk about in the burbs.

Some of them related to a core-street philosophy.

Ideas like:

-Mind your own business (focus on your own stuff/your own issues/don't put your nose where it doesn't belong)

-Don't poop where you eat (don't cause problems where you live/Don't date locally)

-Poop or get off the pot (be decisive, Do not vacillate, indecision is a killer and the cousin of procrastination)

-KISS (Keep it Simple Stupid, complicated is not always better)

Well I just returned from a NHTSA (National Highway Traffic Safety) Certification on the Standardized Field Sobriety Tests in Chicago. The instructor, a former police officer, trainer, and Phd. (he did his dissertation on the HGN, Horizontal Gaze Nystagmus Test) Dr. Platt taught us that KISS for DWI Defense really means: Keep It Sobriety Specific.

In other words when we are looking at a traffic stop, first police contact, and an eventual DWI arrest we (as defense attorneys) should view all the evidence (all the facts) from or through the prism of SOBRIETY.

What and where is the sober behavior?

Driving Pattern

What and where is the normal behavior?

Walking Pattern

What and where is the appropriate behavior?

Talking Pattern

What and where is the expected behavior?

Mental function/Understanding/Coherency

Before we even get to looking at performance on the SFSTS (standardized field sobriety tests: HGN, Heel-Toe, One Leg Stand) we must look over the TOTALITY of the Police encounter with an investigator's demeanor and focus.

Our best defense to the charges of DWI lie within this KISS philosophy.

New York DMV Defines History Alcohol Abuse

I am happy to practice in little Ithaca , NY for many reasons. One that clearly stands out in my mind today is the fact that the DMV here is not too busy. In fact I would say the Tompkins County DMV here is fast, friendly, and easy.

You want to see busy, go to the Philadelphia DMV or better yet, go to any South Florida DMV. I can remember one time standing out in line to get a reservation for my daughter to take a road test. Can you imagine a line 40 people long, wrapping around a Coral Springs strip shopping mall, and you are waiting in this line with a number (like in a deli) in 90 degree humidity? Not fun or funny.

Be thankful for our DMV.

That said, what does the NY DMV classify as a history of alcohol abuse?

When most of us think "history" we think either many incidents in a long term (10 years) or a few incidents within a short term (5 years). The DMV does not allow any conditional driving privileges (or participation in the DDP) if a person has 2 alcohol related convictions within 5 years and has taken the DDP because of the the first alcohol related conviction (DWAI or DWI).

The NY DMV also states that any driving record (abstract) with 2 or more alcohol related charges (could be a DWAI or DWI) within 10 years and boom, you now have a history of alcohol abuse. This is further defined in Part 136.1 (b) (3) of the Regulation of the Commissioner of Motor Vehicles.

So to get your driver's license back after having 2 incidents within this 10 year time frame you MUST fill out and file DMV form DS-449, and submit evidence of either rehab (following an OASAS eval and follow up recommendations) OR a clean bill of health (ie. after a drug / alcohol eval no further treatment is necessary. Form DS- 449 is called "Alcohol Abuse Rehab. Program Summary."

Law Offices of Lawrence Newman

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

Ithaca Lawyer How to Defeat a Speeding Ticket

Ithaca, NY is in fall season. The Finger lakes region of New York State is beautiful this time of the year. To me the flowers of summer are amazing but the reds, yellows, and oranges that explode on to the pastures is absolutely incredible. Too bad people just can not slow down, and smell the coffee. Instead maybe they are drinking a bit too much of it.

All kidding aside the speed limits around these parts go from 30MPH back up to 40MPH and then 55MPH (the state speed limit is 55 except for the Interstates). Sometimes these changes can be abrupt as in OMG it is back down to 30MPH again. So you need to drive up and down, and with the rolling of the hills it can get tiresome.

I used to say (when I was younger), "I feel a need for some speed."

Speeding tickets can be very costly. There are fines, state surcharges, points on your driving record, car insurance ramifications, driver's license suspensions, driver education classes, DMV yearly surcharges, etc. a ticket for 25 miles per hour over the limit is a 6 pointer!

11 points or 3 speeding tickets in 18 months and you have a suspension of your New York license. If you get only 2 tickets in a work zone you also get suspended. For those from out of state, you will have your NYS "privilege" to drive suspended. You could also face a DMV administrative hearing where they would revoke your license. A revocation means you must re-apply and re-test for a license. A suspension means a definite period of time (kinda like suspended animation) where once the time ends the license is still there (you just pay a fee).

If your license gets suspended you may be able to get a restricted driving license (not full driving privileges) for school, work, and medical care.

So how can you defeat a speeding ticket?

Speed radar units need to be calibrated.

Records of calibration need to be kept.

Tuning forks need to be used to test these units regularly.

Tuning fork calibrations and calibration logs need to be done on the date speeding was alleged, and during the month of the violation alleged.

Certificates of calibration must be kept for the tuning forks.

There are many potential areas of errors in the great majority of speed testing devices:

Cosine error, batching error, panning and scanning errors, shadowing errors, errors from interferences (billboards, overpasses, CB radios, cell phone towers, radio towers), errors inside the police car (heater, A/C unit, fans, radios, computers, police radios), errors from improper placement of the radar unit within the police car, errors due to heat build up in the unit, errors due to cold build up in the unit, errors due to power surges by turning on or turning off the radar unit at the last minute to avoid a car's radar detection unit, errors from automatic car locking systems, errors from a laptop, errors from a cell phone, errors from a pager, errors due to mirror switch aiming, etc.

The officer needs to be questioned (cross examined) about all of this, in detail, before he can lay a foundation that this unit was in proper working condition and NO errors were made or occurred.

The real question comes down to can the government, the state, the people of the great state of NY (the District Attorney) prove beyond a reasonable doubt and to the exclusion of every honest, common sense doubt that the radar unit was properly working on the date and time in question?

Can they prove beyond this burden (this is their burden not yours) that the officer appropriately administered and used this testing device so that it was accurate and reliable?

Because if they can not then they have not met their burden, and the Judge must acquit.

New York DWI Windows of Opportunity

Funny how the things you think about can relate to so many other things. This morning I remarked to my wife how the pear I was about to eat had such a brief period of perfect ripeness. No, I'm not high, but I do get these moments of insight. I have found that pears unlike apples are good, crisp, and delicious (not mealy) for only a few days. Cut them too soon and they are hard and bland. 

Then it hit me, DWI cases also have temporary windows of opportunity. The clock begins to run on every case when you are first arraigned with counsel. This is where you enter your plea of not guilty, and are formally told of the charges against you, by The People (of the State of New York).

Once you are arraigned your attorney must NOW make a demand for Discovery, and for a Bill of Particulars. This is the government's evidence against you (how they plan on proving their case). 

The District Attorney now has 15 days with which to comply with that demand. In addition, you have ONLY 45 days from this first date (the date of the initial appearance) to make, and to file any pre-trial motions. Motions to suppress evidence, Motions to suppress statements, Motions to Contest the use of the refusal against you, Motions to state that the stop and/or the arrest were unconstitutional.

Does your attorney serve the demand upon the District Attorney in Court (at the Initial Appearance)? 

Does your attorney wait? A few days? A few weeks? Does he send a letter? 

My philosophy is that:

1. The ADAs (Assistant District Attorneys) have a lot more cases (files) than I do. 

2. The government employees are typically overworked, and can not possibly know each and every file. 

3. I have more time to spend and think about fewer cases (because I take fewer cases).

4. I have more time to demand, gather, interpret, and study the evidence.

5. I have an advantage IF I use time as an opportunity.

6. There is now a greater likelihood that I will better understand the facts and the case.

7. The sooner I begin, the better my defense (s) to the evidence.

Attorneys are on strict timelines (deadlines). Meaning that if you DO NOT file motions in a timely manner you will lose your opportunity (your chance) to contest and argue them at pre-trial hearings. Too bad, so sad or if you snooze you lose. 

Pre-trial hearings (suppression hearings) are really where cases are truly won or lost. They are opportunities (G-d I love that word) where a lawyer can truly test his defense theories, size up the police officer, and create narrow and focused points of attack. 

So much like seizing that opportunity to eat a piece of fruit when it is perfectly ripe I believe it is vitally important to strike early, strike first, and strike hard with DWI cases. 

Ithaca Cortland Lawyer Why I Love DWI Refusal Cases

My phone calls begin something like this, "I got arrested for a DWI?" and my response is usually, "let me ask you a few questions first to help give you some guidance and direction."  The reason for my first couple of questions is to tell me exactly what "type" of DWI case we are dealing with.

DWIs like people come in different shapes, sizes, and packages. DWIs can be:

1. With or without a traffic stop, ie. maybe the police were called to the scene to investigate an accident, or a person asleep behind the wheel, or a BOLO (be on the lookout) for an erratic driver, called in from a tip

2. With or without a breath test (the chemical test back at the police station or barracks)

3. With or without prior DWIs or DUIs or DWAIs or ADWIs

4. With or without a New York State Driver's License

5.  With or without a Sobriety Check Point

By no means is this list complete. There are many different DWI situations and combinations.

The Chemical Test Refusal DWI Case is unique for a number of reasons.

First the positives of the refusal case:

1. The police and prosecution do not have a breath test BAC to prove their case.

2. They can not charge VTL 1192 (2) BAC .08 or > or VTL 1192 (2) (a) Aggravated DWI BAC .18 or >.

3. The prosecutor can only charge VTL 1192 (3), "Common Law" DWI. 

4. The prosecutor usually only has one main witness, the arresting officer. 

5. The prosecutor must prove that "you were mentally and physically incapable ( to a substantial extent) of operating an automobile as a reasonably prudent driver." 

6. They must prove this legal burden of "intoxication" beyond a reasonable doubt based upon the police officer's observations, and field testing, if any.

7. They can not use the Preliminary Breath Test results (at roadside) to prove their case.

8. The DWI defense lawyer can cross examine the police officer at the DMV administrative hearing without the presence of the prosecutor.

9. The cross examination can cover the stop, the arrest, and the field testing.

Second, the two main negatives of the refusal case:

1. You will have NO license of any type (conditional or hardship) while your criminal case is pending. NOTE: unless you win at the administrative refusal hearing (unlikely) or the officer does not show for the hearing and it is re-scheduled.

2. The jury will get an instruction from the Judge that they may infer a Consciousness of Guilt from your choice to not take the chemical test.

Personally, I like Refusal cases because they offer opportunities to challenge the purely opinion evidence of intoxication. The opinion of the officer is an opinion based in bias. He or she will want to support their decision to stop and arrest you. Their instructing, demonstrating, and evaluating you on the Field Sobriety Tests or (Roadside Agility Maneuvers) can usually be shown to be unfair. If we can show you were coherent (understood the officer's directions, instructions, questions) then providing other reasons for your bloodshot eyes, slurred speech (or impairment), and lack of balance create REASONABLE DOUBT in the minds of the jury as to your intoxication.

Dr. Lawrence (Larry) Newman
Attorney at Law
Doctor of Chiropractic

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

see my free book on Winning the DWI Refusal here:

http://dwicom1.wpengine.netdna-cdn.com/files/2013/10/1294-HowtoWintheNewYorkDWIRefusalCase.pdf

What do Sex and Intoxication have in common?

I have always loved to read. I am fascinated by words. What they mean and how they can affect people. Words have power.

In the world of New York DWI defense words like standardized, validated, reliable, accurate, coherent, calibrated, impaired, intoxicated, reasonable, and fair all have a specific meaning within a specific context. You can never fully understand a word without context. That is why even at spelling bees the participants are given the word within a sentence.

Definitions of terms (words) lead us to judging a set of facts and seeing if they fall within an agreed set of conditions. We all saw this take place when former President Clinton was cross examined as to his relationship with Monica Lewinsky. Can you please define "sex"? Can you please define the word "the"?

In the Jones deposition on January 17, 1998, the President denied having had "a sexual affair," "sexual relations," or "a sexual relationship" with Ms. Lewinsky.

Then testifying before the grand jury on August 17, 1998, seven months after his Jones deposition, the President acknowledged "inappropriate intimate contact" with Ms. Lewinsky.

As to his denial in the Jones deposition that he and Ms. Lewinsky had had a "sexual relationship," the President maintained that there can be no sexual relationship without sexual intercourse, regardless of what other sexual activities may transpire. He stated that "most ordinary Americans" would embrace this distinction.

The President acknowledged that [A] person engages in "sexual relations" when the person knowingly engages in or causes -- (1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person . . . . "Contact" means intentional touching, either directly or through clothing.

According to what the President testified was his understanding, this definition "covers contact by the person being deposed with the enumerated areas, if the contact is done with an intent to arouse or gratify," but it does not cover oral sex performed on the person being deposed.

In the President's view(and understanding), "any person, reasonable person" would recognize that oral sex performed on the deponent falls outside the definition because Ms. Lewinsky performed oral sex on the President, then -- under this interpretation -- she engaged in sexual relations but he did not.

I wish I could get away with using this logic on my wife. I can see the conversation now, but honey ... it's not sex if only she's (my new girlfriend) performing and I am not (technically). So what has defining sex (in this way) have to do with defining Intoxication and New York DWIs.

Well first we have all agree upon a NYS legal definition of INTOXICATION. The charge of VTL 1192 (3) is "common law" DWI, and the term intoxication is a specific term of art.

People v. Cruz is the primary New York case to look to when defining the term intoxication.

The NYS legislature has never included a definition of intoxication in the drunk driving statutes but the Cruz case gives us an applicable standard:

"the standard for determining intoxication is constant; that is, whether the individual's consumption rendered him incapable of employing the physical and mental abilities needed to, for instance, form a specific intent, understand the nature and effect of a contract, or to testify truthfully and accurately"

People v. Cruz, 399 N.E.2d 513 (1979). This was somewhat vague so the Court stated further:

"In sum, intoxication is a ... degree of impairment which is rendered when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver."

So there you have it, sometimes sex and intoxication only occur if we can all agree upon their meanings. In a legal setting the lack of objective standards to determine whether a person is intoxicated has led to the "per se" DWI offenses. In my next blog, I will discuss VTL 1192 (2), DWI "per se" which means you are DWI when you have a BAC of .08 or higher.

Knock-em Off at the Knees

Many years ago I was an avid student of Karate. I had studied different styles until I happened upon American Kenpo. I thought it was a perfect blend of offensive and defensive moves because it embraced a pragmatic philosophy. It was Karate for the little guy. It was Karate in a phonebooth. You were up close and personal with not a lot of the high and hard kicks of Tae Kwon Do. Kenpo said do not bring your foot to their face bring their face down to your foot. Stomping on feet, toes, and shins naturally bent and brought bigger (taller) people down. Then they were nicely positioned to hit, punch, and strike. In other words knock-em off at the knees. Aiming low (hitting below the belt) was easy for me at 5'6". It was also very smart.

Nowadays I bring the Karate philosophy to my DWI defense practice. The prosecution must present foundation evidence before they can admit the results of their breath machine. They must present evidence that the machine was in "proper working order" at the time of the test. See People v. Freeland, 68 N.Y.2d 699, 700, 506 N.Y.S.2d 306, 307 (1986). Without this foundation evidence the BAC results are inadmissible.

Over the last month I have had multiple cases (after I obtained discovery) where the machines were not calibrated ie. properly maintained, for over 6 months. I knew this because I went through the Certificate of Calibration records for these machines. New York State has a "written" 6 month rule on Police car speedometers, and an unwritten rule that machines used to gather evidence, whether a speed laser gun or a breath machine be checked at least every six months.

This 6 month rule is not written in stone (or specifically in the DWI statutes) but case law supports it.

In New York State the term "calibration" means a machine that has been: (1) inspected,
(2)calibrated, and (3) repaired (if necessary) by specially trained technicians at specific NYS facilities.

In People v. Todd, 79 Misc. 2d 630, 360 N.Y.S. 2d 754, 759 (Delaware Co. Ct. 1974) a breath test machine had not been calibrated for over a six month time period, and was left on (running) all the time. The County Court disallowed the use of the breath test result. This case was upheld by the Court of Appeals which stated that it is upon the District Attorney to show (demonstrate) that the breath machine is in proper working order.

But as I have stated in prior blogs, even though many Courts will see Todd as creating this six month rule some Judges may still decide not to follow it.

Preliminary Breath Tests and Your 4th Amendment Rights

It is officially the end of summer, and the beginning of Fall here in Ithaca, NY. Last week we took out the air conditioners (the ones you put in old house windows), and to me that signaled the big change. The shift to shorter days and cooler nights.

It is common for people arrested for DWI in New York to confuse the different types of breath tests they were given. When people call me they have usually done (performed) so many tests, that the night or early morning is a blur. The breath test done by the roadside is called a PBT (preliminary breath test) aka alco-sensor test, and the one back at the police station or Trooper barracks is called "the chemical test." The results of PBTs are inadmissible in New York State Courts, and there is only a fine if you refuse to take it. They are considered unreliable because the chemicals within the handheld device wear out over time. On the other hand, the results of a chemical test are admissible in Court and there are steep penalties and a one year license revocation for refusals to submit to testing. Chemical tests use numbered ampoules of chemical solutions which are disposed of after each and every test.

When the police obtain a blood, breath, or urine sample from you it is considered a "search" under the Fourth Amendment. See the U.S. Supreme Court case, Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 402.The Fourth Amendment to the Constitution states that you shall be free from unreasonable search and seizure. Under New York DWI law it is arguable that "Before" police or law enforcement can request that you take a PBT (sample of breath at roadside) they must first have probable cause (reasonable cause) that you are intoxicated.

In People v. Brockum, 88 A.D. 2d 697, 451 N.Y.S. 2d 326, 327 (a New York State 3rd Department 1982 case) the defendant asserted that the preliminary (alco-sensor) testing of his breath in the absence of probable cause to believe (in the officer's opinion) that his ability to drive was impaired by alcohol constituted an unreasonable search in violation of his Fourth Amendment rights. In rejecting the defendant’s claim, the Appellate Division, Third Department, held that there was probable cause under the circumstances:

The record amply demonstrates that the police officer had reasonable grounds to suspect defendant’s intoxication. The vehicle swerved into the opposite lane forcing the police car off the road and was pursued for about one mile by the police car with flashing lights before stopping. These actions constituted sufficient factors from which the officer could reasonably infer that defendant was driving under the influence of alcohol. At the very minimum, the stop was justified. Once stopped, defendant exhibited watery and bloodshot eyes, emanated an odor of alcohol from both his person and vehicle, and admitted that he had a long day at work and had a few beers. In these prevailing circumstances, there was further probable cause for the officer to believe defendant to be driving under the influence of alcohol justifying the breath test.

Similarly, in People v. Graser, 90 Misd. 2d 219, 393 N.Y.S. 2d 1009, 1114 to 15 (Amherst Just. Ct. 1977) the Justice Court held that:

If the officer after stopping the defendant, has reasonable cause (probable cause) to believe that defendant has committed the crime of driving while intoxicated, he can arrest him, and make a search and seizure of the defendant’s breath after arresting him, by demanding a sample of the breath by means of a breath screening test. It would be a search and seizure, incident to a lawful arrest, and not constitutionally proscribed.

If the police officer demands that the motorist give him a breath sample before arresting him, but after having probable cause to make the arrest, such search and seizure also would not be proscribed merely because the police officer is searching for evidence of a particular crime, committed- to wit driving while intoxicated.

Which kinda brings me round robin on this blog post, the government needs PC (probable cause) for an arrest, they need PC to take seize a sample of your body fluids or breath, and they need PC to charge you with the crime of DWI. They can not arguably use their tests first to establish PC. That would be like putting the proverbial cart before the horse so to speak.

These are the fights we must wage in order to preserve and uphold our Constitutional rights. Sometimes in defending my clients I feel like David going after Goliath (the government, the police) with my slingshot. I must utilize a well thought out, and strategic plan of attack to focus and aim for vulnerable areas. The advantage always goes to the better prepared opponent.